Page 14 - the NOISE July 2015

STATE OF EXCEPTION:
ARIZONA CITIES FIGHT FOR INDEPENDENCE
As Arizona spends countless hours debating and legislating a wide array of individual issues, from plastic bag bans to the minimum wage, a prominent theme is emerging: the struggle between state and local control. These sovereignty battles are popping up in cities across the country, and Flagstaff is suddenly finding itself at the center of a fundamental debate. In a state that wants freedom from national law, how much freedom do cities have from the state law?
A MATTER OF PRINCIPLE?
On June 2, Flagstaff had its latest opportunity for a public sovereignty debate: a city council meeting that would decide whether the city would sue the state of Arizona.
In an effort to ensure greater democratic control in the state, Arizona passed legislation called the “Voter Protection Act” in 1998. It mandates that any laws established by a voter initiative can only be overturned by a super-majority (3⁄4) of the state legislature. This would theoretically keep politicians from playing political football with issues that voters found important enough to rule on themselves. One of these voter-approved initiatives was the “Raise the Arizona Minimum Wage for Working Arizonan’s Act,” which expressly gives cities the power to set their own minimum wages and benefits, as long as they are higher than state standards.
But in 2013, the state legislature passed another contradictory law, without the required super- majority, that took away the power of cities to set their own minimum wage. In response, a group called the Flagstaff Living Wage Coalition is suing the state of Arizona for usurping this power.
At the June 2 meeting, Flagstaff City Council was set to vote on whether to join the lawsuit to contend for its constitutional right to local control. After more than an hour of heated public comments, council members prepared to weigh in.
“There’s a lot of fear in this room, and I understand that,” said Councilmember Coral Evans as the vote drew near. She noted that she had been on both ends of the minimum wage debate, both as an employer that had to let someone else go for financial reasons, and also as a single-parent employee that had been let go for financial reasons. Despite these very real concerns, she insisted, this vote was about something else entirely. “The fact of the matter is that the moment you start letting people take away constitutional rights, you end up in really bad situations. And maybe some of us aren’t going to be affected by those bad situations. But there are always some of us who are affected when the constitution and basic human rights are disturbed. Every single time the state chips away at our basic constitutional rights, it needs to be nipped in the bud. Period. End of story.”
The issue was not setting a minimum wage, proponents of the lawsuit pointed out, but whether Flagstaff would defend its constitutional right to local economic control. But in his only comment on the matter, Mayor Nabours rejected the idea that he ought to defend Flagstaff’s economic sovereignty, since he wasn’t personally interested in raising the minimum wage. “I haven’t looked into the pros and cons of the litigation. It may win, it may lose, but I would not be interested in getting involved in any litigation where I am not interested in the ultimate result,” he stated.
The comment left some proponents of the lawsuit flabbergasted, as it ignored the constitutional principle they had been focusing on altogether and set what they consider to be a dangerous precedent. Councilmember Eva Putzova, who is part of the Living Wage Coalition and brought the issue to council, responded with alarm. “I guess what he said spoke for itself,” Councilmember Putzova said. “He’s only interested in upholding law when it serves his own interests. Cherry-picking the law we’re going to defend when it’s infringed upon, even by our own elected officials in higher offices, is not in the best interest of democracy. It is a dangerous position, especially for an elected official.”
Nevertheless, council as a whole seemed to find more value in the mayor’s line of reasoning; it voted the proposition of joining the lawsuit down.
SCALING ARGUMENTS
Ultimately, both sides of these debates are accusing their opposition of the same thing: hypocrisy.
Arizona is a state that often resists or openly defies federal control. From the perspective of the Flagstaff Living Wage and Ban the Bag campaigns, the state is being hypocritical by not granting cities and municipalities the same sort of freedom that it expects from the federal government. If we really believe in “local control,” they ask, why not extend the principle to the city level, where there are often unique social and economic conditions? And yet, hypocrisy is also the charge being leveled at these campaigns.
Mayor Jerry Nabours was asked about the state vs. local conflict in an April interview with NAZ Today regarding Flagstaff’s plastic bag regulation. Was it hypocritical for the state of Arizona to want “local control” but then deny it to their cities? He claimed that the hypocrisy lies elsewhere. “Some of the same people who complain about the state telling the city what to do are people that, on behalf of the city, want to tell businesses or individuals what to do,” Mayor Neighbors said. “I guess everybody wants to be the boss of somebody else.”
Councilmember Karla Brewster would echo this sentiment two months later, during the minimum wage lawsuit debate at Flagstaff City Council. “There’s nothing more democratic than allowing businesses to determine the way they pay their own employees, as long as it’s abovethestateminimum,”commentedCouncilmemberBrewster.“Itseemstomethatpeople are wanting the council to regulate businesses, and yet we’re the very ones complaining about the state trying to make decisions for us.”
Moran Henn of Friends of Flagstaff’s Future, an organization that openly supports the Living Wage and Ban the Bag campaigns, says that this analogy is not reasonable. “In essence, the private sector serves its own interests, while the City and our elected council members provide
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legislation that protects and promotes the interests of all of its citizens,” said Ms. Henn. “This is achieved by balancing multiple needs such as protecting the rights of private businesses while also protecting the basic needs of workers, the environment, and public health. Clearly, the [analogy of ] state to local government is not the same as local government to private business.”
It seems that the core question — the one which everyone is talking about but not addressing directly — is how we determine which issues should be considered a political “concern” for each of these individual spheres of sovereignty. How large a community is a
business responsible to? The state? The city? No one at all?
“RELEVANT INTEREST”
When the city of Bisbee, AZ heard that the state’s newly-passed SB 1241 would repeal their one-year-old ban on plastic bags, the city council balked. Much like Flagstaff, they had invested a great deal of time and energy in consulting various business and environmental groups to collectively determine the best way to address the issues purportedly caused by plastic bags. Large grocery chains like Safeway had been involved in the discussions. In the tradition of fierce Arizona independence, the city council voted to draft a letter of refusal to the state. It reads in part:
“We realize that in enacting SB 1241 the Legislature declared that dispensing of plastic bags by retailers is a matter of statewide concern. However, as you know, the Arizona Supreme Court has held that as a Constitutional matter, such declarations are not entitled to deference.” (Translated from legalese:“We don’t have to listen to you.”)
The letter goes on to cite the state Supreme Court decision that granted Tucson the right to regulate smoking in restaurants, which states, “Safeguarding the health, safety and welfare of the community has long been considered a proper goal for municipal government.” If this weren’t applicable enough to a plastic bag ban, the decision also included the ruling,
“Protecting aesthetic values by avoiding visual clutter is a constitutionally sanctioned objective for a municipality.” Bisbee claims that it is nearly impossible to separate the issue of plastic bags from health, welfare and visual clutter.
This is not the first time Bisbee has been in conflict with the state of Arizona over its local ordinances. In 2013, it became the first city in the state to recognize civil unions, but was forced to change the language of its law after being sued by the state. This time, the city may not back down without a fight.
WHEN IS THE STATE NOT THE STATE?
The turmoil in Arizona over plastic bags, the minimum wage and state vs. local control in general is far from the only one going on in the country. State legislatures across the nation are seeing a flood of “preemption bills,” the moniker given to laws that take away the power of cities to regulate themselves.
More than 1,000 miles away, in the capitol of Missouri, a scene eerily similar to Arizona’s is
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